Russey v. State
| Decision Date | 03 February 1975 |
| Docket Number | No. CR,CR |
| Citation | 257 Ark. 570,519 S.W.2d 751 |
| Parties | Millard RUSSEY and Willie Way, Jr., Appellants, v. STATE of Arkansas. 74--118. |
| Court | Arkansas Supreme Court |
Acchione & King, Little Rock, for Millard Russey.
McArthur & Lofton, Little Rock, for Willie Way, Jr.
Jom Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.
The appellants were found guilty of murder in the first degree by a jury which assessed their punishment at life imprisonment in the Department of Correction. We first consider Russey's appeal. He contends for reversal that it was error to admit his confession into evidence because it was secured by coercion and duress and, therefore, was involuntary. He also argues that the state failed to produce all material witnesses connected with the asserted involuntary confession.
Appellant Russey was arrested on January 2, 1974, at 3 p.m. on a burglary charge. At the Denno hearing Russey testified that later that evening, detectives Sparr and Rounsavall took him from the jail to locate the stolen property. Russey testified that afterwards Rounsavall and Sparr took him to a cemetery and physically beat him. According to Russey, one of the officers put a pistol in his mouth and told him 'he had just shot a boy over in that cemetery a couple of days ago, and asked me did I want to be the next one?' Appellant testified that he would told to cooperate with them and was told that he killed Carter. Russey further testified that a tooth was loosened from a blow administered in the cemetery and Sparr, in the presence of Rounsavall, knocked it out the next day before he signed a confession. Russey was 18 years old and had a 10th grade education. He testified he was terified from the first day's experience and did not relate the statement which Sparr brought it for him to sign. Russey testified that during this time he was not allowed to use the phone and was unable to secure an attorney until January 5, 1974. On that date he retracted his statement.
Detectives Best and Vandiver were the only police officers who testified at the Denno hearing. They testified no other officer was present at the time appellant gave his statement dated January 3, at 6:40 p.m. They saw no swelling of appellant's face and appellant did not complain about any physical abuse. To their knowledge, no threats, coercion or physical abuse ever occurred. Both officers testified that appellant was given the Miranda warning, fully understood his rights and waived them as evidenced by his signing a waiver of rights form preceding his statement. At appellant's request, Best wrote the statement which Russey then signed. Best and Vandiver testified that Russey did not request to use the phone or talk to anyone. Best was unaware that Sparr and Rounsavall took appellant from the jail in a patrol car the night before appellant was interrogated by Best in Vandiver's presence.
At the Denno hearing, the trial court ruled the statement voluntary without the state producing either Sparr or Rounsavall as witnesses. At trial, however, after the statement was read to the jury, Sparr was called as a rebuttal witness. Rounsavall never testified. The sole explanation for his absence was that he was off duty. Suffice it to say that it is manifest that the state did not meet the burden of proof as is required in Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973). There we held:
Whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.
In the case at bar, the accused offered testimony that his confession was induced by violence, threats and coercion by the officers. Two of these officers, Sparr and Rounsavall, did not testify at the Denno hearing. Therefore, as to them, his testimony stands uncontradicted. The burden was upon the state to produce these material witnesses or give adequate explanation for their absence. Sparr testified at the trial subsequent to the Denno heariag. However, the trial court must first find at a Denno hearing that a statement is voluntary before it is admissible. Ark.Stat.Ann. § 43--2105 (Supp.1973). Rounsavall, whom appellant Russey said he particularly feared, never testified. The fact that he was 'off duty' the day of the trial is not 'adequate explanation.' Smith v. State, supra.
The state 'notes' that appellant did not object to the absence of Rounsavall. However, appellant's objection to the confession as being involuntary was sufficient. In Smith v. State, 256 Ark. ---, 505 S.W.2d 504 (1974), we said:
Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.
Consequently, in the case at bar, it was necessary in determining the voluntariness of the confession that all material witnesses be presented or an 'adequate explanation' of absence be given. Sinc neither occurred, we must hold it was prejudicial error to admit his confession into evidence.
We next consider Way's appeal. He contends the court erred in allowing three photographs into evidence which were unnecessary since the identification of the deceased was not in issue and the photographs served no purpose other than inflaming the minds of the jurors. Four photographs were excluded by the trial court. One of those admitted showed the victim where he fell in the living quarters of the store after being shot. The other two photographs depicted his wounds.
In Milam v. State, 253 Ark. 651, 488 S.W.2d 16 (1972), we said:
Photographs may be introduced to describe and identify the premises, to establish the corpus delicti, to disclose the environment of the crime, and to corroborate testimony. * * * When photographs are otherwise properly admitted it is not a valid objection that they tend to prejudice the jury.
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